WORKSHOP REPORT

NATIONAL CAPAPCITY BUILDING WORKSHOP AND CONSULTATION ON

HUMAN RIGHTS BASED ENVIRONMENTAL PUBLIC ADMINISTRATION –
FOCUSING ON THE MINING SECTOR
18-19 MAY 2016 – NAIVASHA, KENYA
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SUMMARY
“In recent years, the relationship between human rights and environmental protection has become
clearer. A healthy environment is necessary for the enjoyment of a vast range of human rights. In turn,
the exercise of human rights, including rights of access to information, participation, and remedy, is
critical for the protection of the environment. UNDP and Swedish EPA efforts to strengthen good
governance in the mining sector, including through capacity-building workshops like this one, are of vital
importance for the protection of the environment and human rights.”

- John Knox, UN Special Rapporteur on Human Rights and the Environment

The Swedish EPA and UNDP organized a national capacity building workshop and consultation on human
rights-based environmental public administration of the mining sector in Naivasha, Kenya from 18-19
May, 2016. The workshop was designed in close cooperation with the Kenyan National Environment
Management Authority (NEMA). It brought together over twenty senior staff and experts from the
Kenyan government and civil society including: the Ministry of Mining, Ministry of Environment, Natural
Resources and Regional Development Authorities, Kwale County Government, Department of
Occupational Health and Safety Services, National Commission on Human Rights, the Institute for
Human Rights and Business (NGO), Huria (NGO), and Chamber of Mines. An expert from the UNDP
Mozambique Office also attended, where a similar workshop is under preparation. A list of participants
is included in Annex 1.

The Sida-funded Environmental Governance Programme (EGP) workshop was designed to:
 Share country experiences and increase understanding of how to integrate Human Rights-based
Approaches (HRBA) into environmental governance of the mining sector;
 Identify gaps and priority areas for future learning and technical support; and
 Strengthen the relationship between SEPA/UNDP, NEMA and stakeholders in the mining sector as a
base for further EGP cooperation, learning and knowledge exchange.

The workshop sessions included topics on: Human Rights in Public Administration; Inclusive Participation
in Mining; Ecosystem Services and Biodiversity; Design and Financial Guarantee for Closing of Mining
Operations; Environmental Conservation in Kenya; Impacts of the Kenyan Mining Sector on the
Environment; and Environmental Data. These themes were selected in advance through consultations
between SEPA/UNDP, NEMA and participating organisations (see Annex 2 for Agenda). Learning
outcomes and interactive learning activities were prepared for each session (see Annex 3).

The workshop succeeded in providing a platform for exchanging country experiences and standards that
strengthen public administration of mining through human-rights based approaches (HRBA) grounded in
Principle 10 and linked rule of law and gender equality principles. HRBA are key to advancing sustainable
development and increasing policy implementation effectiveness in line with broader national
development goals. Procedural rights, including accessibility, right to be heard, participation,
transparency, right to appeal, and accountability, are already enshrined in the Kenya constitution, legal
frameworks and public administration, even if the phrase “Human Rights” is not always used.
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Participants identified bottlenecks and additional learning needs and technical support required to
address implementation gaps and further operationalize HRBA across the mining cycle. These include:

 Formulation of specific guidelines and success criteria to measure and ensure more meaningful
community participation, transparency, and accountability, including communication strategies;
 Integration of an ecosystem services framework into environmental and social impact assessments;
 Development of more specific remediation standards, and guidelines for negotiating deposit bonds;
 Stronger capacities of both public and civil society groups to implement the above areas.

Participants also highlighted the value of covening oganisations from different backgrounds, and agreed
on the need to continue strengthening longer-term working relationships between the government and
civil society participants, as well as between national partners, SEPA and UNDP.

Immediately following the workshop, the government held a coordination meeting for all Kenya
participants to discuss programme activities in more detail from an HRBA perspective, including plans
for a Strategic Environmental and Social Assessment of the mining sector. Recommendations from the
workshop and the coordination meeting will be used to inform EGP work in Kenya and other countries.
This incldues preparation of guidelines, technical support and web-based learning through the UNDP-
World Bank on-line forum: GOXI.org, and a UNITAR-UNDP-UNEP e-course on Environment and Human
Rigths.

ABOUT THE SEPA-UNDP ENVIRONMENTAL GOVERNANCE PROGRAMME (EGP)

The Sida-funded EGP responds to the challenges many developing countries face in implementing
environmental policies and integrating environmental and social concerns into broader sustainable
development policy making. The programme strengthens the environmental, gender, human rights and
rule of law dimensions of public administration work in large-scale mining sectors. Working in
collaboration with ministries of environment, mining, planning and finance, as well as other public and
private stakeholders, the programme provides targeted support to four countries: Colombia, Kenya,
Mongolia, and Mozambique. The programme also works at the global and regional level to strengthen
south-south knowledge sharing and innovative policy approaches. It draws on the combined governance,
social, environmental and extractive sector expertise of the Swedish Environmental Protection Agency,
SEPA, the United Nations Development Programme, UNDP, and partners. The EGP prioritizes
collaboration with public, private and civil society organizations, and welcomes new partners.
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1. SESSIONS CONTENT AND REFLECTIONS

A summary of each session follows, including objectives, key messages, discussions and reflections. The
outcomes of group exercises are presented in Annex 4.

1.1 THE ROLE OF THE STATE AND HUMAN RIGHTS IN ENVIRONMENTAL PUBLIC ADMINISTRATION,
ESPECIALLY FOCUSING ON THE MINING SECTOR

The session focused on addressing the unsustainable use of resources and environmental pollution and
strengthening the underlying human rights principles and rule of law. The presentation aimed at
unbundling what human rights are, the categories of human rights, the role of human rights. The HRBA
principles and standards were also presented to the participants.

Overall aim: To set the framework of human rights and rule of law in environmental public
administration with a focus on mining.

Key messages:

 The state and the public administration is the infrastructure for rule of law and human rights.
 Human rights set limits to the exercise of power.
 Governance of natural resources management needs to move beyond the confines of traditional
environmental policy.
 Policy design for environmental sustainability is embedded in a political context with multiple actors
and interests.
 In many cases, measures that strengthen important human rights principles such as the rule of law,
transparency and public participation may be equally or more important than specific
environmental policies or projects for improving environmental management and sustainable
development.

Discussions and reflections: Some of the following forward looking needs were identified by the
participants during plenary discussion to continue to work with in a national context:

 Need to include the aspects of companies’ rights or other people’s rights in the extractive industries.
 Need to improve on the Environmental Governance Process in the Country so as to have standard
operating procedures in the sector.
 Need for a process of drafting a business action plan on human rights, national business assessment
and regional hearings to enhance the public participation aspect of the people.
 Need to bridge the space between Government Agencies, NGOs and Private Companies involved in
the mining sector so as to foster collaboration in the mining sector.

1.2 INCLUSIVE PARTICIPATION IN THE MINING PROCESS

This session focused on the concept of communication and participation and how social dialogue´ from
a rights based perspective can contribute when implementing inclusive solutions to complex or so called
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´wicked´ problems. Different stages in the mining process (from planning to post-closure) and the
Kenyan Licensing Process were used as a framework.

Overall aim: To gain a broader and shared understanding of possibilities stakeholder engagement can
offer and what it takes to succeed.

Key messages:

 Participation (inclusive not selective) is a core human right principle that offers development
opportunities.
 Without communication there can be no participation.

Discussions and reflections:

The fact that the mining sector impacts all of the 17 SDGs were e.g. highlighted and that enhanced
partnership and dialogue will be critical for mining to realize the full potential for scaling up its positive
and minimizing its negative impacts.

To fulfill obligations in e.g. constitutions and/or legislations and other frameworks it is fundamental to
go beyond compliance and define stakeholders broadly and strategically to avoid missing out key
strategic opportunities.

Participation is a core human right principle. Participation is embedded in political realities and struggles,
situated in particular processes, localities and actors and invitational and not imposed. How we ´think
participation´ is important.

There can be no participation without communication. Strategic communication planning includes

assessments and stakeholder analysis. The value added of stakeholder engagement and risks perceived
of not involving stakeholders was the focus of a group working session (see Annex 4).

Some of key issues discussed regarding the Kenyan process/key events in relation to the different
phases in the mining cycle were:

 Planning: First, a concessional license application is needed, which requires consent from local
communities and landowners, so that there is potential for access to land. Engagement is done
through establishment structures or directly through private landowners.
 Exploration: Another round of engagement with local communities and/or land owner on one-to-
one basis. Also need to involve CSOs to raise awareness and market the potential of the operation
early. Also need to engage with local authorities, e.g. county commissioners.
 Pre-feasibility and feasibility: First an economic feasibility assessment to be shared and discussed
with company and shareholders. If the economic feasibility is good, viable, then the next step is the
E(S) IA.
 Construction: All stakeholders come on board, more than during initial stages. In this phase there is
a need for detailed stakeholder mapping.
 Operations: Well established structures and capacity to licence and oversee operations among
government institutions are needed. Also important to be able to provide security for local
communities and to secure funding.
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 Expansion: In the expansion phase there is a need for a new EIA before project approvals. To ensure
that community rights are observed and to continue to raise awareness and ensure continued
support.
 Closure: Environmental experts needs to be engaged.
 Post-closure: Capacity to ensure restoration of site.

Key questions remaining:

 Awareness of rights and access to information: e.g. who is responsible for informing local
communities and workers of the environmental/health risks, at what stage, and how? There is a
need to do some of this engagement even during the planning stage.
 What types of community engagement are used during EIA? Is there a standard ToR?
 How is the final EIA communicated/discussed with local communities/potential workers?
 How is the company mitigation plan shared and discussed, with whom?
 Participation within local communities: e.g. who decides on behalf of local communities to endorse
a project?
 How is information on grievance mechanisms shared, and when, by whom? E.g. the National
Environmental Tribunal
 How effective are grievance mechanisms, how can they be strengthened?
 How and when do different parts of government discuss, e.g. Mining and Agriculture?
 What parts of existing mandates and legislation can be strengthened?
 How to engage media?
 Financing issues: e.g. staffing of NEMA compliance, enforcement and field operations division;
county-level Directorate for Worker Health and Safety, etc.
 How funds EIA experts; if companies, then is there an independent review process? Otherwise,
there is potential for conflict of interest. Yes, there is an independent Technical Advisory
Committee.

The entire mining cycle needs to be described as we have started to do with the group exercise, to show
roles and responsibilities for ensuring engagement from an HR perspective. This can be a short
document to help identify areas of possible reform/strengthening with NEMA and other partners; and it
can also be used as a communication tool of citizens/local communities, including with a simple
illustrative diagram of key steps and entry points for engagement across the cycle.

1.3 ENVIRONMENTAL CONSERVATION IN KENYA

The aim of this session was to give an overview and key highlights in the mining sector in Kenya in terms
of permitting and the challenges being faced while monitoring. Participants gained a common
understanding of how environmental conservation is perceived in the country. Participants shared
challenges and their views on internationally accepted standards of health, safety, human rights and
environmental protection.

The presentations were done in three parts as follows:

 Environmental Impact in Kenya with emphasis on the Mining Sector
 Impact of Mining on the Environment
 An Overview of Environmental Data collection in Kenya
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Discussions and reflections:

Partial gaps that needed further attention were discussed and included:
 Sector specific remediation standards
 Specific guidance and standards rates for deposit bond payable
 Deposit Bond Assessment Report
 Information system required for deposit bond management
 Environmental impacts on: flora and fauna, biodiversity, land, water, human health
 How widely known are these potential negative impacts?
 Importance of Environmental data: but what are areas for strengthening?

1.4 ECOSYSTEM SERVICES AND BIODIVERSITY

This session focused on how mining affects ecosystem services and biodiversity. Questions were raised
and discussed on how assessment of ecosystem services can be used to assess trade-offs between
different stakeholders over time and how it can be used as a decision base for the public administration.

Overall aim: A shared understanding that the ecosystem services framework can help to analyse wealth.

Key message:

 Mining affects ecosystem services and biodiversity immediately and locally, but also across time
and space. This affects the distribution of wealth across different stakeholder groups and needs
to be addressed both for human rights and for environmental and economic targets at different
administrative levels (local, regional, national).

Discussions and reflections: An ecosystem services approach is important to mining for ensuring that the
full economic and social impacts are understood for more informed decision-making across the mining
cycle – not just as step before licensing - e.g. regarding licensing decisions, planning for risk mitigation,
and use of revenues, including for local communities, but also for the economy more broadly. An
ecosystem services approach e.g.:

 Strengthens cost-benefit analysis, including decisions not to approve a project.

 Helps better identify direct and indirect impacts over time and space. It would be useful in other
sectors, too.

The current EIA systems does not consider fully the economic potential impact, so this may lead to less
effective decisions-making and planning, including decisions to start construction, expand, close, and
use of revenues.

Reasons for applying an ecosystem services approach in the mining sector include:

• The mining industry’s dependency on key resource inputs such as water depends on the
integrity of ecosystems.
• Mining impact on lowering the water table and hence affecting surrounding communities and
agriculture.
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• More environmentally-friendly projects are more economically viable as investors continue to

examine the sustainability of mines.
• Opportunities to invest in alternative land-use options, and partnerships with neighboring
communities could offer future business opportunities.
• Noncompliance is potentially costly, poses risks such as the directors of offending companies
being held legally accountable, expensive operational delays or stoppages, licenses being
revoked or loss of investment.

Remaining questions:

 How to introduce an ecosystem services approach? How to fund, how to integrate into current
legal and operational mechanisms governing the mining sector?
 How to strengthen, SEAs, feasibility studies, EIA ToR and expertise to cover these expanded
issues?

1.5 DESIGN FOR CLOSURE

This session focused on the importance of early planning for the status the area affected by the
prospecting or mining activity shall have after the activities have closed. Closing measures need to be
planned already at the design of the mine, design for closure, as well as the cost estimate for the closure
that is the base for the financial security. Closure planning needs to include the different right holders.
The session drew on participants’ knowledge of the existing and coming Kenyan regulation of the mining
process and financial security. The session began with a short presentation of the Swedish permitting
process for mining activities. For each part of the session there was then a short presentation of Swedish
regulations and experiences followed by questions to be discussed in groups, including identifying how
Kenyan regulation is handling the issues. The questions and a summary of the discussions are given in
Annex 4.

Overall aim: A shared understanding of the importance of early planning of sufficient closure needs for
the specific prospecting/mining activities and the corresponding estimated costs.

Key message/messages:
 The design of the prospecting/mining need to include all closing measures and its costs for
reaching the agreed status of the area after closure. Emergency plans are necessary when major
accidents may occur in a waste facility.

The session was in four parts – all with group exercises:

1. Design for closure
2. The dimension of mining waste
3. Financial security
4. The necessity to prevent and limit consequences of major accidents in waste facilities (not presented
or discussed due to lack of time).
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Discussions and reflections:

Design for closure

 There is much existing legislation: e.g. Mining Act, EIA regulations, Government Mining Bill,
Deposit Bond draft, etc.
 Need to make an assessment of baseline established in terms of integrity of ecosystem;
 This links well to new environmental deposit bond. This still needs to be operationalized.
 The assessment should be done by a technical institution with the proper mandate.
 There is also a need for stakeholder engagement, including local communities.
 EIA process provides for stakeholder engagement.
 The EIA also requires a closure plan.

The dimension of mining waste

A short presentation was made on mining waste, the amounts in different types of mining, important
characteristics, and how the handling of mining waste is covered by an EU directive and specifically
through the waste management plans. This was followed by a discussion on the types of mining
activities that produce waste in Kenya and in what amounts and on how Kenyan regulation is covering
the handling of mining waste issues.

Waste Amount
Titanium mining 96%
Gold mining 98%
Fluorspar (chloride): waste rock and tailings 93%
Gemstone 99%
Quarry: crushing less than 5%
Building stones less than 5%

Financial security

A short presentation was made on the Swedish regulations on financial security and on the EU-directive
covering this. Some examples were also given on the consequences and costs for remediation when
waste facilities have not been closed properly. This was followed by discussion on different aspects of
the Kenyan existing and coming regulation on the issue of financial security.

The necessity to prevent and limit consequences of major accidents in waste facilities

There was unfortunately no time to cover this part in the session. However, some of the aspects covered
by an EU-directive was presented.
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2. AREAS FOR FUTURE COOPERATION

Priority areas identified by the participants for future learning and/or ideas for next steps:

 Environmental issues – with a specific focus on impacts from the Kenya’s mining sector
 Licensing
 County Administration Capacity Building
 Best practices on stakeholder engagement/bench marking
 Sector specific remediation standards
 Sector specific guidelines deposit bonds
 Capacity development of regulators
 Mainstream HRBA and analysis of ecosystem services framework in SESA

Areas for strengthened collaboration between state and non-state actors:

 Site visits (best practices)

 Mining
 Environmental issues
 HRBA
 Rule of Law
 Benefit sharing
 Ecosystem services in mining
 Deposit bonds

Sharing of learning outcomes:

 Report on websites (all participants respective organisations)

 Circulation of material
 Regional events
 Utilize E-Systems already in place

Topics for webinars:

 Design for closure

 Public participation
 HR-ESS
 Deposit bonds
 Biodiversity and mining
ANNEX 1. PARTICIPANTS LIST

Name Organisation Position G

1 David Ong’are National Environment Director - Compliance M
Management Authority (NEMA) and Enforcement
2 Zephaniah O. Ouma National Environment Deputy Director - M
Management Authority (NEMA) Enforcement
3 Edward Wabwoto National Environment Legal Officer M
Management Authority (NEMA)
4 Oceanic Sakwa National Environment Senior Compliance & F
Management Authority (NEMA) Enforcement Officer
5 Maureen Njeri National Environment Compliance and F
Management Authority (NEMA) Enforcement Officer
6 Reagan Awino National Environment Compliance and M
Management Authority (NEMA) Enforcement Officer
7 Victoria Muzame National Environment Secretary F
Management Authority (NEMA)
8 Doreen Achieng Alwala National Environment Intern F
Management Authority (NEMA)
9 Elizabeth Mutua National Environment Intern F
Management Authority (NEMA)
10 Abel Chumba Ministry of Mining Deputy Director - Mines M

11 Wilson Ng’ang’a Ministry of Mining Economist M

12 J. A. M. Waweru Dept. of Occupational Health - M

and Safety Services (DOSHS)
13 Stella Wangechi Kenya National Commission for Human Rights Officer F
Human Rights (KNCHR)
14 Bernard Mogesa Kenya National Commission for Principal Human Rights M
Human Rights (KNCHR) Officer
15 David Rono Ministry of Environment & Deputy Director - Policy M
Natural Resources
16 Rose Kimotho Institute for Human Rights and Programme Manager - F
Business (IHRB) Nairobi Process
17 Moses Njeru Kenya Chamber of Mines (KCM) Chief Executive Officer M
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Name Organisation Position G

18 Yusuf Lule Mwatsefu Human Rights Agenda (HURIA) Executive Director M

19 Arnold Kipchumba Council of Governors Technical Assistant - M

Water, Forestry &
Mining
20 Ali Mafimbo Kwale County Government CEC - Lands, Physical M
Planning & Natural
Resources
21 Pakia Mohammed Kwale County Government Chief Officer - Lands, M
Mining & Natural
Resources
22 Ann-Marie Fallman Swedish Environment Senior Adviser F
Protection Agency (SEPA)
23 Mats Kullberg Swedish Environment Communication Advisor M
Protection Agency (SEPA)
24 Per Stromberg Swedish Environment Senior Adviser M
Protection Agency (SEPA)
25 Sanne Due Swedish Environment Policy Advisor - F
Protection Agency (SEPA) Sustainable
Development
26 Tim Scott UNDP - HQs NY Policy Advisor - M
Environment and
Natural Capital
27 Patrick Maingi UNDP - Kenya Programme Officer - M
Inclusive Economic
Growth
28 David Githaiga UNDP - Kenya Team Leader - Energy, M
Environment & Climate
Change
29 Marit Kitaw UNDP - Mozambique Technical Advisor / F
Extractive Industries

In total: 19 Male; 10 Female

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ANNEX 2. AGENDA
Capacity building workshop and consultation on human rights based
environmental public administration - focusing on the mining sector

Tuesday 17 May

Arrival at Naivasha for check in and meet and greet-dinner

Wednesday 18 May

Facilitators: Patrick Maingi, UNDP Kenya and Sanna Due, SEPA/UNDP

8.00 – 8.30 Official opening of the workshop

Mr. David Ongare, Director Compliance and Enforcement, Nema

Introduction and Welcome

Mr. Zephaniah Ouma, Deputy Director Compliance, Nema and Sanna Due, Policy
advisor, SEPA/UNDP HQ

Presentation of the Environmental Governance Program

Mr. Tim Scott, Policy Advisor, UNDP HQ

8.30 – 10.30 The Role of the State and Human Rights in Environmental Public
Administration - focus on the mining sector

Dr. Bernard Mogesa, Head of Research and Compliance, Kenya National

Commission on Human Rights

Rose Kimotho, Programme manager for East Africa, Institute for Human Rights
and Business (Nairobi process)

Policy design for environmental sustainability is embedded in a political context

with multiple actors and interests. In many cases, measures that strengthen
important human rights principles such as the rule of law, transparency and
public participation may be equally or more important than specific
environmental policies or projects in order to improve environmental
management and sustainable development. Therefore, as we address the
unsustainable use of resources and environmental pollution, we must also
strengthen the underlying human rights principles and rule of law.

This session aims to set the framework of human rights and rule of law in
environmental public administration with a focus on mining.
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10.30 – 11.00 Break with tea/coffee

11.00 -12.30 Inclusive Participation in the Mining Process

Facilitator and presenter: Mats Kullberg, SEPA

A session focusing on the concept of communication and participation and how

social dialogue from a rights based perspective can contribute when
implementing inclusive solutions to complex problems. The session involves a
lot of interaction and the participants’ sector knowledge and experience will be
at the forefront. Different stages in the mining process (from planning to post-
closure) and the Kenyan Licensing Process will be used as a framework.

The aim with this session is to gain a broader and shared understanding of
possibilities stakeholder engagement can offer and what it takes to succeed.

12.30 – 13.30 LUNCH

13.30 – 15.00 Inclusive Participation in the Mining Process (cont.)

15.00 – 15.30 Break with tea/coffee

15.30 – 16.30 Environmental Conservation in Kenya

Mr. Zephaniah Ouma, Deputy Director Compliance, Nema

Oceanic N. Sakwa, Nema

This session aims to give a common understanding among the participants of the
environmental problems and concerns in Kenya related to the mining industry.
What is included and perceived by “environmental conservation” among the
participants and what is their view on applicable internationally accepted
standards of health, safety, human rights and environmental protection

16.30 – 18.30 Ecosystem Services and Biodiversity

Facilitator and presenter: Dr. Per Strömberg, SEPA

Mining affects ecosystem services and biodiversity immediately and locally, but
also across time and space. This affects the distribution of wealth across
different stakeholder groups and needs to be addressed both for human rights
and for environmental and economic targets at different administrative levels
(local, regional, national). In this session we will describe how the environment
is an important element of wealth, and define the role of tools to guide the
policy analysis of mining (e.g. the ecosystem services framework). Moreover we
will analyse how ecosystem services and environmental quantification
(biophysical or monetary) can be used to assess trade-offs between different
stakeholders over time.

The aim of this session is a shared understanding that the ecosystem services
framework can help to analyse wealth.
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18.30 – 19.00 Closing of the first day

What have we learned from today and what do we need to take into
tomorrow’s sessions?

Presentation of some of the captured conclusions.

19.30 DINNER

Thursday 19 May

8.00 – 8.10 Opening of Day Two

8.10- 12.15 Design for Closure and Financial Guarantee for Closing of the Operation
including mining waste issues

Presenter and facilitator: Dr. Ann-Marie Fällman

This session will focus on the importance of early planning for the status the
area affected by the prospecting or mining activity shall have after the activities
have closed. The closing measures need to be planned already at the design of
the mine, design for closure, as well as the cost estimate that is the base for the
financial security. The closure planning needs to include the different right
holders. The session will involve the participants’ knowledge of the existing and
coming Kenyan regulation of the mining process and financial security.

The overall aim is a shared understanding of the importance of early planning of

sufficient closure needs for the specific prospecting/mining activities and the
corresponding estimated costs.

10.00 – 10.30 Break with tea/coffee

11.00 – 12.15 Design for Closure and Financial Guarantee for Closing of the Operation -
including mining waste issues - cont.

12.15 – 13.15 LUNCH

13.15 – 14.00 Closing and evaluation

Facilitators: Patrick Maingi and Sanna Due

In this session we will recapture what we have learned during these two days
and discuss the way forward.

14.00 – 14.15 Closing remarks

Mr. Tim Scott, Policy Advisor, UNDP HQ and Dr. Bernard Mogesa, Head of
Research and Compliance, Kenya National Commission on Human Rights
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ANNEX 3. LEARNING OUTCOMES

For each session the following leaning outcomes was formulated:

The Role of the State and Human Rights in Environmental Public Administration -
focus on the mining sector

 Identify human rights standards and principles in Kenyan law binding for the environmental
public administration of the mining sector in Kenya;
 Explain the purpose of human rights and their role in a democratic setting;

Inclusive Participation in the Mining Process

 Recognize the links between participation (as a core HR-principle) and communication;
 Recognize different communication tools at hand to develop engagement strategies;
 Identify stakeholders involved in different stages of the mining cycle and their roles, needs,
motivation levels, opportunities and risks

Environmental Conservation in Kenya

 The participants will be able to identify the major environmental problems and concerns in
Kenya related to the mining industry

Ecosystem Services and Biodiversity

 Define the role of tools to guide the policy analysis of mining (e.g. the ecosystem services
framework);
 Analyse how ecosystem services and environmental quantification (biophysical or
monetary) can be used to assess trade-offs between different stakeholders over time;

Design for Closure and Financial Guarantee for Closing of the Operation - including mining waste
issues

 Recognize how closing objectives, costs for closing measures and the involvement of right
holders in these questions are covered in the existing/coming regulation;
 Identify the possibilities in the existing/coming regulations of obtaining satisfactory status in
the area affected after closure of the activity;
 Recognize the impact of mining waste on closing measures;
 Recognize the risk of major accidents in waste facilities, how it is covered in existing/coming
regulation;
 Identify needs of emergency planning for major accidents.
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ANNEX 4. GROUP EXCERCISES

Inclusive Participation in the Mining Process

Question: Discuss risks involved in not engaging stakeholders in the mining process and possible values
added:

Risk of no participation Benefits/Values of involvement

 Time cost
 May set expectations wrong
 Compromised security due to conflict
 Potential investors scared away
 Wrong interpretation of project can
lead to wrong results
 Financial losses incurred due to stops,
delays
 Individual perceptions – may not
understand issues the same way
 Security, a common goal so everybody
will work towards it
 Legitimacy of the project
 Improved relationships between
investors and communities
 Improved livelihoods
 Increased GDP (taxes etc.)
 Promotes accountability, because
information is power
 Enhance understanding and relations
 Conflict resolution

Question: The participants were asked to identify key events in each phase in relation to the Kenyan
mining process, identify key stakeholders, there perceived needs, when to involve them and how.
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Phase Stakeholders Needs How to involve

Planning Government Lead agencies. Capacity development Training
-Ministry of Mining Modern technology & skills Well-arranged meetings
-MOIED Public consultations Advertisement/
- NEMA Established structures Announcements
State agencies Influence public opinions
Enable legislation and policy
-National Police Service
To give mining permit
-Attorney General
Investors For EIA processes/SEA
Community Get land consent
representatives/Land owners Provision of resources
Opinion Leaders To provide security
Development partners
&business communities
Media
Kenya human rights
commission/civil society
Exploration Lead government agencies Issuance of licenses Training &capacity
e.g. NEMA, MoM Provide exploration reports development
Civil society To give land ownership consents Technical expertise
Investor Manage expectations One on one meetings
Land owner Financial support Organized forums
Local administrators
To pay courtesy calls
National treasury
Pre-Feasibility Ministry of mining Environmental management plan Participate in EIA process
&Feasibility NEMA Technical expertise in EIA & Submit EIA report/feasibility
Investors Audits study report
Community Training & capacity development Establish ways to acquire
Consultants land rights
Research institutions Consultation for EIA process

Construction Ministry of public works Licensing operations Technical capacity

Ministry of Health Building plan approvals Training
Local community Skilled & unskilled labor
Ministry of mining
National construction
authority
DOSH
Investor
Operations Ministry of Mining ,Lands Oversee operations Well established structures
commission, License operations Capacity development
Investors Funding
NEMA To provide security
National treasury
National Police service
Kenya Human Rights
Commission
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Phase Stakeholders Needs How to involve

Expansion NEMA For new EIA processes Environmental experts
Community Project approvals Modern skills
Ministry of Finance Awareness &support Technology
Lands commission Ensure community rights are
Civil society observed.
Closure Investor Environmental experts Capacity building
NEMA
Both levels of government
DOSH
Local community
Civil society
Post-Closure NEMA Ensure restoration of site Capacity building
Investor Training
Local / National government
Community
MDCAS
Ministry of Mining
Civil society

Ecosystem Services and Biodiversity

QUESTIONS RESPONSES

Why are ecosystem services
and biodiversity important
when assessing mining?
How could the ecosystem
services approach and
biodiversity be integrated into
the governmental decision
making in the mining process?
Examples of ecosystems and biodiversity include: forests, wetlands, land,
rivers etc., and they provide the following services; provisional services (e.g.
food, fresh water, timber ), regulatory services (e.g. climate & water
regulation)and cultural services (e.g. aesthetic value, research, educational)
These ecosystems and biodiversity are fragile and can be affected by mining
activities.
The parliament should pass laws that make it mandatory to integrate
biodiversity and ecosystem considerations in the exploration licensing process.

Integration should happen through the tools that assist in decision making,
e.g. EIA, SIA, HIA, SEA, EA, EMP, CCM, CIA & RAP.

Public outreach and promotion of active public participation to build capacity

to the locals and create awareness so that the right holders can make
informed decisions.

Cost benefit analysis of ecosystems and biodiversity should be integrated in

the environmental Impacts Assessments.

The government should ensure effective enforcement.


QUESTIONS
What are the good and bad
experiences of mining in
Kenya and Sweden (with
respect to ecosystem services
and biodiversity)?
9
RESPONSES
BAD EXPERIENCES
 Insufficient consultation prior to mining process.
 EIA process is linked only to licensing rather than long term planning.
 Environmental degradation, habitant loss, fragmentation; Pollution-Air,
Aquatic &Terrestrial pollution; Loss of protected species, loss of
biodiversity
 Health problems
 Impacts on livelihoods, displacements and climate change.
 Corruption
 E.g.: Athi-river Mining; Macalder gold mines in Migori; Magadi Salt mines;
Gemstones mining in Taita-Taveta; Sand harvesting; Stone Quarrying in
Thika; Copper mine in Sweden
GOOD EXPERIENCES
 Some mines have been rehabilitated, e.g. Haller Parker, a tourist site.
 Mining is an economic activities
 There are draft laws and policies governing the mining sector.
 There is regulatory body (NEMA) which has been overseeing the mining
activities.
Good examples include:
 Recycle waste water-Sweden
 Enhanced storage capacity-Sweden
 Protection of cultural sites- Kaya forest
 Rehabilitation of the mines -Base Titanium

Design for Closure and Financial Guarantee for Closing of the Operation - including mining waste
issues
Design for Closure
QUESTIONS
Group A
Based on existing and coming regulation:
- Analyse what status that shall be
obtained at the area affected by
the prospecting or mining
activities after closure of the
activities.
- Describe how and when the right
holders are involved.
- Identify how knowledge of the
present environmental status is
gathered and how information on
“traditional knowledge” is
gathered.
Assess what in your opinion would be
the right time to plan the closure of the
prospecting or mining activity.
Group B
Based on existing and coming regulation
- Identify how it is secured that the
satisfactory status will be
obtained after closure of the
operation?
- Identify who approves the
satisfactory status predicted from
the planned closure and from the
performed closure?
Assess when and what difficulties may
occur?
Identify what closing measures and
resulting status normally are designed
and presented in the project for getting
the license?
Analyse what parts that are missing?
10
RESPONSES
There is much existing legislation: e.g. Mining Act, EIA regulations,
Government Mining Bill, Deposit Bond draft, etc.
Need to make an assessment of baseline established in terms of
integrity of ecosystem;
This links well to new environmental deposit bond. This still needs
to be operationalized.
The assessment should be done by a technical institution with the
proper mandate.
There is also a need for stakeholder engagement, including local
communities.
EIA process provides for stakeholder engagement.
Traditional knowledge is also covered well by the EIA process.
Must be a formal communication from government technical
institution before the decommissioning process is certified.
All this must be considered during the planning stage.
Existing regulation is very thin, e.g. Mining Act.
The current deposit bond bill is addressing these issues, i.e.:
Clause 152 focusses on land use: land should be restored to original
status, water quality
Also requires plans for reclamation and closure should be included
at time of initial mining license.
Clause 154: environmental protection deposit bonds. More detailed
guidelines are needed to operationalize for mining sector.
Challenges: plans may be incomplete until more detailed guidelines
are provided.
The EIA also requires a closure plan.
Environmental Audits also provide a monitoring framework.
NEMA issues a bond discharge certificate as proof of satisfactory
closure in consultation with leads state agencies.
Reg. 16 outlines community engagement, but more detailed
guidelines are needed.

Mining Waste
QUESTIONS
What are the critical characteristics of
the produced mining wastes?
Identify how the handling of mining
waste is addressed in the application for
permit?
Analyse to what extent sufficient
information on the characteristics and
handling of the mining waste included in
the applications for permit?
Assess to what extent, from your
opinion, the regulation is covering the
handling of mining waste?
11
RESPONSES
Rock, Fluoride, Ferrous, Sulphide
Transportation and challenge when waste amount is high
Related cost implications of this and handing in general, a source of
air, water, land pollution
Disturbance of rock structure, geological aspects
Titanium: toxic wastes
Gold mining: mercury (smelting/processing)
This is included in EIA process, but also an Env Management Plan
that also provides for handling waste. EIA does not adequately
address these issues.
During implementation stage, there are a range of regulations
covering water, air and solid waste for handling and transport.
The Environmental Management Plan is a useful monitoring tool.
Environmental Audits can have a multi-agency and multi-media
inspection.
The proposed mining bill can provide a wider framework to help
cover the gaps of the EIA and Env Audits.
There are gaps in existing regulations.
There is also inadequate technical capacity among collaborative
institutions.
Regulations also provide for grievance mechanisms, monitoring,
and suspension, cancellation.

Financial security
QUESTIONS
Identify what should be covered by the
financial security?
Identify what permit is regulating the
measures that the financial security shall
cover?
Identify how it is secured that the size of
the financial guarantee is corresponding
to the costs of these measures?
Identify how the size of the bond is
calculated?
Identify how the bond (and right size) is
included in the permit?
QUESTIONS
Group 1: Analyze at what stages and
how different stakeholders can
influence this process?
Group 2: Analyse how the measures to
be covered by the bond correspond with
the closure measures discussed in Part 1
of the session.
Group 3: Assess from your opinion if the
deposit bond assessment report
produced sufficiently early in the
permitting process?
Group 4: Identify if the costs of
environmental emergency are included
in the financial security? If so, analyse
how costs for environmental emergency
are estimated?
12
RESPONSES
Conditional approval that NEMA asses to monitor.
The bond discharge certificate is issued once compliance is
achieved. Only after this is the deposit returned.
This is based on the accuracy of the assessment. It is also based on
the annual adjustment of the annual bond payment due to inflation,
as well as periodic audit of deposit bond payable.
Provisions also to capture emergencies/unexpected situations.
This is part of the assessment, but additional guidelines needed to
provide standards for the calculations.
Deposit bond assessment profess includes a checklist that analyzes
insurance, environmental systems and compliance history. The
bond must be paid within 30 days of the approval and before the
permit is used.
RESPONSES
Regulation 10.5 states that the content of the assessment report is a
technical exercise involving competent experts the investor, so there
is ‘no influence’ per se during the planning stage.
Of course this takes place in a broader context of stakeholder
engagement during the EIA.
During later stages, also stakeholder engagement would be involved
during operations, emergencies, reclamation and closing
procedures.
Current provisions are not sufficient, but the proposed deposit bond
regulation will be produced early enough during the assessment
report under the EIA before the permit is issued
The costs of env emergencies are included in principle but difficult
to calculate. NEMA and other agency expertise needs to be
strengthened for this.
The operator needs to take responsibility during emergencies.

ANNEX 5. PICTURES
Zephaniah Ouma, Deputy Director - Compliance and
Enforcement at NEMA, welcoming all participants to
the workshop.
Rose Kimotho from IHRBA sets the framework of
human rights and rule of law in environmental public
administration. “Governance of natural resources
management needs to move beyond the confines of
traditional environmental policy”, she said in her
presentation and also stressed that policy design for
environmental sustainability is embedded in a political
context with multiple actors and interests.
13
David Ong’are, Director - Compliance and Enforcement
at NEMA. “There are many challenges that we face in
the mining sector and hopefully this programme would
help address the same”, he said in the official opening
of the workshop. Participants were also told that
issues of social inclusion and environmental
conservation are pertinent for any project to be
implemented successfully.
Workshop participants involved in discussions on
unsustainable use of resources and environmental
pollution and strengthening human rights principles
and rule of law.
 14

Benard Mogesa from KNCHR is illustrating, with the Mats Kullberg from SEPA discussing inclusive
help from participants and a cord, what might happen participation and the importance of involving
if right holders/citizens (on the one side) or duty stakeholders, addressing needs across the different
bearers/government (on the other) pulls too hard. If stages of the mining cycle.
the government says there are no resources and the
citizens say they want their rights the cord may break.
The government needs to show its commitment and
protect citizen rights.

Reagan Awino, NEMA, presents an overview of Ann-Marie Fällman from SEPA leads a discussion on
environmental data collection in Kenya. design for closure of mining activities.
 15

Oceanic Sakwa, NEMA, desribes some of the impacts Per Strömberg, SEPA, gives a presentation on how a
of mining on the environment. broader and a shared understanding of how ecosystem
services framework can help to analyse natural
wealth.

Participants identifying stakeholders involved in The dimension of mining waste and how mining waste
different stages of the mining cycle. is covered in the Kenyan regulation was one of the
topics discussed in group sessions during the
workshop.